Texas Not Required to Expand Mail-In Voting, Panel Rules

Harris County election clerk Nora Martinez, left, helps a voter in Houston on June 29, 2020. (AP Photo/David J. Phillip)

(CN) — The Fifth Circuit on Thursday vacated a San Antonio federal judge’s order that would have allowed any eligible Texas voter to qualify for a mail-in ballot during the Covid-19 pandemic.

The Texas Democratic Party sought mail-in voting for all registered voters, but had abandoned most its original challenges to Texas’ election law — including claims for race and language-minority discrimination, as well as violations of the First Amendment — and pared the case down to just one age discrimination argument made under the 26th Amendment.

“There are quite reasonable concerns about voting in person, but the state’s mandating that many voters continue to vote in that way does not amount to an absolute prohibition of the right to vote,” U.S. Circuit Judge Leslie Southwick wrote for the three-judge panel. “As to abridgment, voters under age 65 did not have no-excuse absentee voting prior to the pandemic. Further, requiring many to vote in person during this crisis, with safety measures being imposed and some flexibility as to ‘disability’ being shown, does not amount to an unconstitutional status quo.”

In short, the panel concluded in a 2-1 decision that Texas conferring the privilege of absentee voting to all voters over 65 did not constitute a violation of the 26th Amendment. Southwick, a George W. Bush appointee, wrote that the “real issue here” concerns equal protection under the law and acknowledged that the question is not before the court.

The move follows the court’s decision in June to stay the lower court’s injunction, which U.S. Circuit Judge Jerry Smith then wrote “will be remembered more for audacity than legal reasoning.”

The injunction, issued by U.S. District Judge Fred Biery in May, was notable for its discursive character, many literary allusions and three appendices, including endnotes.

Eight days after Biery, a Bill Clinton appointee, granted the Texas Democrats’ requested relief, the Texas Supreme Court roundly declared that a Texan’s lack of immunity to the novel coronavirus — or fear of coming down with Covid-19 due to exposure at the polls — does not constitute a qualifying “disability” under the state’s election code.

Texas election law reserves mail-in ballots for voters who have a sickness or physical condition, including pregnancy, “that prevents the voter from appearing at the polling place on election day.”

Additionally, voters who will be out of their registered county during the voting period, those 65 or older, and eligible voters who are jailed may lawfully apply for an absentee ballot.

The Fifth Circuit heard oral arguments in the case early last week. Houston attorney Chad Dunn, of Brazil & Dunn, represented the Texas Democrats.

“What the state can’t do by statute is say a bracket of people based on their age get a voting benefit while others” do not, Dunn told the judges. “What makes those votes [of people 65 and older] so much more valuable, that they’re worthy of potential voter fraud, that the others get excluded from it? The state put on no evidence of widespread voter fraud.”

The U.S. Supreme Court, in late June, declined to require Texas to permit all eligible voters to cast absentee ballots. Back then, Justice Sonia Sotomayor said the Texas Democrats’ 26th Amendment challenge should not first be heard by the nation’s highest court.

Southwick was joined in the Fifth Circuit panel majority by Senior U.S. Circuit Judge Carolyn Dineen King, a Jimmy Carter appointee.

U.S. Circuit Judge Carl Stewart, a Clinton appointee, issued a partial dissent. He said Biery’s injunction was proper because the 26th Amendment’s use of the word “abridge” should be construed broadly.

“By giving younger voters fewer options, especially in the context of a dangerous pandemic where in-person voting is risky to public health and safety, their voting rights are abridged in relation to older voters who do not face this burden,” Stewart wrote.

Election Day is Nov. 3. The deadline for Texas voters to request a mail-in ballot is Oct. 23, just 11 days before the election.

The U.S. Postal Service advises Texans to send in their ballots at least 15 days in advance, “and preferably long before that time.”

Texas Attorney General Ken Paxton said in a statement Friday that he is focused on protecting election security.  

“State election law, as written by the Texas Legislature, must be followed consistently and correctly in order to protect the integrity of our elections and prevent fraud. The district court’s order blatantly violates state law and will do nothing but sow confusion and chaos,” he said.

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